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Sex toy review: Crescendo
A while back, a sex toy company called Mystery Vibe emailed me to ask if I’d be willing to review a product for them for my blog. I said, “Sure!,” cheerfully ignoring the inconvenient fact that I detest vibrators. So they sent me this fancy schmancy device called a Crescendo.
Now your response right now might be, “What the fuck, you don’t like vibrators?!” followed by, “Why the hell should I read the rest of this review?” Well, to answer the first point, I find vibrators tolerable when they’re ridiculously slow and have irregular rhythms. But mostly I just think they’re incredibly uncomfortable. I enjoy making women happy, however, so I like to keep a handy arsenal of vibrators around. Which brings me to the second question about how I reviewed this toy: I did what any sensible slut would do; I took it to a Victorian-themed kink party, and treated a couple of lovely ladies for hysteria. You know… for science!
Okay, so first off, the selling points from the company. What does Crescendo have going for it? It’s a rechargeable flexible toy with six independent vibrators that you can (theoretically) control with an app on your phone, and it’s fully submersible. It can be many different shapes, as the website shows: It currently sells for $199 (with free shipping right now), so it’s not a small investment in pleasure.
But let’s just go ahead and get one thing out of the way at the start. A friend of mine at the party where I tried out Crescendo noted that with vibrators, it’s usually a case of Rechargeable, Waterproof, Powerful: Pick 2. Crescendo, alas, is no exception to this rule. It’s rechargeable and waterproof, but if you love Hitachi-style genital abuse, save your money. I tried Crescendo out on two different women, and Test Subject #2 just basically stared blankly at me and the poor toy with that tragic, “Is something happening to my genitals? I can’t tell” look. We knocked the Crescendo up to high, and she continued to just look vaguely uncomfortable; we gave up. Her opinion was basically 0 stars.
So, assuming that you’re not the sort of person who likes to feel like a car engine is revving up against your bits, what can Crescendo do for you?
For our experiment, our victim who I’ll call Meredith, found a random girl to stuff some fingers inside her, and a very well endowed gentleman whose dick she could suck, while another woman physically manipulated the Crescendo against Meredith’s bits and I controlled the app for the Crescendo on my phone. If this sounds like a lot of people were trying to make her happy, it’s true. During this phase, the Crescendo stayed completely on the outside around Meredith’s clit.
For most of the second phase of this experiment, Meredith just jerked herself off without all her assistants. For this, she kept the toy bent into a U-shape, so that half of it was inside her and half outside. She noted that while the flexibility of the toy was potentially awesome, in reality, her own pussy muscles kept trying to bend and straighten it back out of shape. This really limited its power as an insertable toy.
Hypothetically, the Crescendo with this shape should be able to provide a really subtle and magnificent experience, since you can have higher levels of vibration on the inside or the outside, depending on your preference. In practice, however, this turned out to be pretty difficult to manipulate. As long as you want a clear difference between them, it’s fine; but if you want the power to be more evenly distributed, you’re in trouble. None of us (and there were a lot of smart people around) could make the vibrator have evenly distributed intensity throughout. There was always more intensity at the base, which meant that you had to pick which side you wanted the stronger vibration on.
We ran into a whole host of other practical problems. The toy has buttons on both its sides, and it’s really hard not to end up bumping into them while you’re playing with it. On several occasions during our experiment, we accidentally turned it off. It’s also really hard to touch those buttons yourself if you’re jerking yourself off with it. Unless you’ve memorized where these tiny buttons are ahead of time, you’ll have to take the toy off of you in order to adjust its intensity–not so great in the heat of the moment. It wasn’t any easier to adjust if you were another person manipulating the toy.
Theoretically, the app should keep you from having to worry about those problems. But at its current stage of development, the app is mostly just bewildering. Most importantly, as far as me, an engineer, a computer scientist, and a graphic designer could tell, the app doesn’t really let you control intensity of vibration. Only the physical buttons on the Crescendo itself do that. On top of that, there’s no easy way to manipulate the six different vibrators in the Crescendo. You have to keep scrolling around between a lot of different options, most of which just don’t make sense. It would be way more reasonable to be able to directly control each of the six vibrators and their respective intensities.
Ultimately, Meredith rated the orgasm she had from the Crescendo as “outstanding and excellent,” but said that the complications and inadequacies of the toy would be unlikely to make it her go-to vibrator. Her opinion of it was basically 4 stars.
During our experiments, we did not attempt to use Crescendo for penis-in-vagina sex, nor did I find any people with penises who wanted to try it on themselves. Given the current limitations of the toy, I would be reluctant to try to use it for PIV sex, although I definitely think it has potential for that (like a WeVibe).
All of us who participated in the experiment felt that Crescendo has a lot of potential. We felt that the key problems that we hope the designers would fix in a later version would be:
- Actually having some sort of on/off switch. Preferably one that’s hard to hit during play. The current lack of one is extremely annoying.
- Other than the on/off switch, getting rid of the physical buttons entirely would be helpful. Substituting a remote control would be easier and reduce the chances of accidentally turning it off or up/down while using it.
- Improving the app to provide much more control. Nothing about the app is intuitive presently, and it also just isn’t very useful. It doesn’t let you do any of the things you would most want to do. You should just be able to tap any of the six vibrators and set the rhythm and intensity, and adjust the intensity by dragging up or down. It would also be fucking fabulous if the app had an option to make your phone vibrate in some approximation (at least the rhythm) of what you’re doing to the person. That way, if you’re manipulating your partner, you have some clue what you’re doing.
- Having a sturdier charging base. The base fell off a low table to the floor, and basically fell apart. My two very mechanically savvy partners managed to put it back together, but that shouldn’t be necessary.
 For the record, I have seen the same thing happen with Sybians, which many people claim are amazing. I was once at a sex party where someone brought a Sybian. I watched three folks with vaginas ride it. The first just looked bored. The second had approximately the appalled look on their face that a woman would have if a man with a soft dick had repeatedly tried to penetrate her belly button. The third had many noisy and happy orgasms. All of which is to say, sex toys are definitely not one-size-fits-all propositions. I myself would literally not ride a Sybian with a ten-foot-pole.
Solicited Poly Advice: Primary Problems and Hierarchy Troubles
Much of the time I’m sufficiently opinionated that I just write unsolicited sex and relationship advice. But this time, someone actually asked a solid question and said I could answer it publicly. This person, who I’ll call Jo, had been to my poly architecture class and heard me make the claim that it’s ridiculously difficult (nigh unto impossible, it seems) for people in very serious secondary relationships who want a primary to find one. She wasn’t questioning the claim. But she was concerned, because she already has a wife and a serious girlfriend, but she just met The Perfect sub For Her (™). The problem is that Perfect sub, who I’m going to call Amy for the sake of simplicity, doesn’t have a primary and definitely wants one, and lives a long way away anyway. Jo was worried about Amy finding a primary if Amy was always sitting at her feet whenever they went to events together, and asked for my advice.
My advice is… hoo, boy, that’s a tricky one.
On the one hand, in some ways distance can work in your favor in that situation, because it tends to place automatic constraints on how serious the relationship can get (there’s only so much time you can practically spend with someone who lives a long way away). On the other hand, poly long distance relationships have a habit of becoming vacation-ships–you know, the kind where you don’t get out of bed for two days, do all your laundry and clean your house before and after “the date,” and ignore most phone calls from other people when you’re together? Vacation-ships are a big problem when you’re trying to build other actualrelationships because they make the other relationships seem so much less fun by comparison. Vacation-ships are like dessert, but people need solid meals to be healthy and happy. And yet. You need to eat vegetables, but they don’t look very tasty next to cheesecake, do they? Of course, you’ll actually enjoy the cheesecake a lot more if you eat your veggies. Go figure.
The other way that long distance becomes a problem here is that it makes my first automatic advice a lot more difficult to implement, which is: assuming that Amy is the kind of person who meets people at events, don’t go to many events “together”. For most kinky folks, even if they don’t actually meet a Person at events, they socialize and network at events in ways that ultimately can help them meet a Person. So if you go to an event and spend all of your time with the Person you already have, limiting your opportunities to meet new people, you make it really difficult to acquire the missing Person you’re looking for. BUT if you’re long distance, events often become your chief opportunity to spend quality time together.
The temptation here is the Rotten Compromise, where you say, “We will go to this three-night event, and even though we will be sharing a hotel room together, Amy and I must spend one evening apart so she can look for a date.” It sounds eminently reasonable, but sadly, it’s really not, in my experience. At a bare minimum, even people who are quite capable at the Pick Up need one night to search and another night to cement their search, so you really have to promise to spend two evenings apart. But if you’re sharing a hotel room (or cabin or tent), it’s ridiculously easy to just chuck your good intentions entirely and decide that a “night” apart in that context is from 7 pm to 10 pm. Suddenly your resolution not to spend too much time together and to enforce socialization with other people gets flushed down the toilet. Do I sound like I’m speaking from experience? Yeahhhhh…
And I haven’t even gotten to the basic day-to-day stuff where Amy struggles not to text you all the time, because she knows she’s not supposed to depend on you too much emotionally, but she still values you and the support you give her so much. And even though she knows she shouldn’t let it happen, you kind of become her rock. And dammit, she never meant for that to happen, but how is she ever going to find anyone who’s even as remotely awesome as you?
That latter point raises an important point that a lot of hierarchy discussions leave out: there really are some people who are That Awesome. I know a number of folks with a zillion partners, and several of their partners say they’d ideally rather have a primary; but since Awesome Person already has a primary (or two or three), they’ll settle for mostly being Awesome Person’s secondary or tertiary because Awesome Person is That Awesome. So if you’re That Awesome, it’s possible that Amy might kind of give up the hunt for other partners. Be prepared for this possibility. It’s happened to a lot of the people I know.
But let’s say you’re trying to stay super committed to helping Amy find a primary, and let’s hope that you’re better at managing all of this than I have historically been. What do you do?
Dump her. No, I’m kidding. Well, I’m kind of not… Except, you’re not going to, and I sincerely hope you aren’t the sort of person who’d do that because I told you to anyway. It’s still good advice, but I hope you, like me, are unwilling to take this good advice.
So what else do you do? First, you have to be very clear about the relationship boundaries and possibilities. Say, “I have a wife and a girlfriend, and I love you, but I cannot be the Person that you need, and I want to actively support your quest to find that Person.” Try not to accidentally raise unrealistic expectations. At the same time, don’t try to force yourself to stick to unnecessarily harsh relationship boundaries as a matter of principle. There’s a balance there, and no one but you and your partners can find it. That’s a matter of trial and error. If Amy asks you to do or be something for her, and you have the time and energy and inclination to do it, do it. Don’t say “no” just because you’re afraid she’s getting too dependent on you or that it will raise her expectations too high. Constantly doing boundary maintenance for the sake of boundary maintenance is futile and exhausting, in my experience. To use a plant metaphor, don’t try to create relationship topiary: get an approximate sized box to grow your relationship in, and don’t freak out every time it looks a little too big or too small.
Next, you should try be very careful about how you spend time in public places where Amy has good opportunities to meet other people. Unless Amy is the sort of person who is constitutionally incapable of meeting people in large gatherings, or the sort of person who goes to events all the time without you, try not to be her Event Girlfriend. Try to make sure that she goes regularly to quality places where she can meet–and will basically be forced to interact with–quality people without you. You can’t force her to meet other people, but you can make sure that you aren’t the human security blanket that most of us kinky oddballs love to have when interacting in big groups.
Most importantly, if Amy does manage to get another relationship, or even something that looks like it might grow up into one, graciously accept your back seat role. Don’t make her feel guilty for spending less time with you; tell her she’s wanted, but that you accept that whatever she is building with takes priority. Recognize that initially she’ll probably come running to you every time something goes wrong in that other relationship because you probably will remain her security blanket for some time. And then eventually she’ll either stop running to you because that relationship grows up, or for a different reason because they broke up. The hardest thing about anticipating and managing these kinds of relationship changes is recognizing that your role in her life may change completely once she gets her Person. Most of the people who are attracted to hierarchical poly over anarchical poly usually prefer stability; but when you start trying to build relationships over top of previous relationships instead of under them, you don’t really know what’s going to happen.
I don’t know how helpful this has been, because there really just aren’t any easy answers to this very serious question. To me, it often looks like one of the unintended consequences of hierarchical poly life is that some people just seem stuck in a pink-collar relationship ghetto–much like the beloved and well-treated secretary in your office who is never going to get a promotion and never going to get paid what she deserves. Everyone wishes they had a way to fix the system, but no one really has a fucking clue how. If anyone else has a fucking clue, I’d certainly love to hear it.
I wish you both (all) the best of luck.
Halloween & Slut’s Pride
Every year I hear a lot of feminist rants about the sexual objectification of women from Halloween costumes. There’s no question that American women’s Halloween costumes are often just an excuse to wear lingerie in public in a (more-or-less) socially acceptable way.
(Just in case you’re reading this and you’re not from America, here’s some context from the movie Mean Girls to tell you basically everything you need to know on this one):
Most of the rants I see take for granted that the sexual objectification of women is obviously inherently bad. I’m going to bracket that assertion for a moment and start with a point that I have never heard raised before in this discussion:
What if the real problem isn’t sexual objectification? What if the real problem is that women are only allowed to pretend to be sluts once a year even if it’s what they want to do all the time?
Any good student of culture will tell you that most long-lasting conservative cultures have rituals of escape. Indeed, often the most constraining cultures have the most surprisingly escapist rituals of all (e.g. the Amish and Rumspringa). These rituals are often only tolerated within those cultures because participants are viewed as having stepped outside of their normal social selves. The simplest, and very common, way to do that is by wearing masks or costumes (although other versions involve the use of intoxicants, religious trance or possession, or simply defining the participants as temporary outsiders as many coming-of-age rituals like Rumspringa do). But the point is that those rituals often involve people doing things that they are assumed to secretly want to do much of the time, but which normal social rules don’t let them do as regular members of society.
Sound a little bit like women dressing up for Halloween in America?
Basically, our culture assumes that women all want to be sluts all the time, but we don’t let them do it because… reasons. For all that we generally encourage women to dress much more sexually than men all the time, we don’t really let women loose sexually 363 days of the year (the other day they get some leeway for is their birthdays). Throw a costume on them, though, and suddenly women get some freedom to play a slut for a night before they go back to being their regular chaste selves.
Maybe it’s because I’m a slut all the time, or maybe it’s just because I’m genuinely hypersexual (you know, sort-of the polar opposite of an asexual). But to me, this idea is a huge problem. NOT (just) because women get all the sexual objectification for their Halloween trick/treat and men don’t, but because there’s another message coded in there: the only way you’re allowed to be a slut is if you pretend it isn’t really you. If we gave women legitimate sexual freedom the other 363 days of the year, their motivation to dress slutty for Halloween would almost certainly diminish considerably.
Before I got into the BDSM scene took up the life of a sluttastic dilettante, I always used to dress up in the sluttiest costumes I could find for Halloween–prostitutes, slutty fairies, you name it. Several years later, I usually forget to actually assemble a Halloween costume because I get to dress like that all the time (or not) if I want to… in a context where it’s way more socally acceptable and fun (see below). There’s no real thrill associated for me with “dressing up” as a slut at this point. I just get to BE one, which is waaaaaaaaay more fun.
So here’s a crazy thought: rather than criticizing the social institutions of Halloween for encouraging revealing costumes for women, why don’t we criticize the social institutions that make that so appealing for women who get stuck in carefully maintained de-sexualized lives the rest of the time when they’re not dressed up? Maybe those costumes are a fucked-up form of liberation for women who don’t get to be sexually free the remaining 99.4% of the year.
And maybe the biggest problem is that we tell women they have to pretend to be someone else before they’re allowed to be sexually free.
Okay, so I’m sure some of you reading this are still pretty pissy with me for hand-waving over the whole objectification thing, and that’s understandable. I’m going to try to address some of the key points of this huuuuuge question here, but recognize there’s a book’s worth of relevant information and analysis for this, so I’m inevitably going to miss a lot of things.
But I’m going to suggest that, fundamentally, ### “sexual objectification” is mostly only a problem based on equal opportunity, relative power, and social context. It’s not actually inherently bad.
Ack, I can feel lots of you revoking my feminist card as I write this, but hear me out, please! …I’ve got a pretty nice ass. I’ve walked down the street in short skirts. I’ve walked into bars in short skirts. I’ve stripped in a variety of contexts. And I’ve walked around kink events in everything and nothing. I’ve been ruthlessly objectified in all of those contexts, and I assure you, IT FEELS COMPLETELY DIFFERENT. It often feels a little bit gross to be objectified when you weren’t trying to do anything sexy, and it often feels downright scary in contexts where you feel like your physical safety might be in question.
But go to a kink event–where many people have gleefully pre-consented to objectification–and the experience changes dramatically. On top of that basic intentional difference of respectfully sexualized context, there’s also a much greater sense of equality: men get ruthlessly objectified as much (or perhaps even more) than women. The fact of being objectified in no way reduces someone’s social status or personal power. Finally, perhaps I’m naive, but I’ve never really worried much for my physical safety there, so objectification almost never feels like a threat.
The thing is that lots of us–both men and women–actually really enjoy being objectified. Sure, I assume that’s more common among kinky folk than the population at large, but I know lots of men and women who will guiltily confess that they enjoy being cat-called walking down the street. Many of us also enjoy being obviously checked out. It’s an ego-boost, it’s flattering, and it’s sometimes just downright funny. The problem, as I’ve said, is that even those of us who often enjoy it don’t enjoy it in all contexts: the elevator look from your waiter is not the same as the elevator look coming from your massage therapist which is not the same as the elevator look coming from your boss. Each of those scenarios changes the aforementioned dynamics of equal opportunity, relative power, and social context. (And of course, there’s always personal preference, since some people would find an elevator look uncomfortable in basically any situation).
All of this is to say that if women feel socially pressured to wear extremely revealing Halloween costumes when they don’t want to, that’s a big problem. It’s also a problem if women keep getting put on sexual display in contexts where a. Men aren’t b. Women feel disempowered in general and disempowered sexually in particular and c. Women feel unsafe. But change the fundamental composition of the social context, so that things look more like the world of the BDSM scene, and I really don’t think that sexual objectification is a big problem. I realize that the rest of the world doesn’t look like the BDSM scene, but I sure as hell want it to.
Notice that a huge part of why the sexual objetification of women is such a big problem most of the time is that women often feel like there may be serious consequences for refusing OR accepting blatant sexual advances. When those consequences are vastly reduced–and when a culture shifts from slut-shaming to slut-embracing as the BDSM culture has attempted to do–then a lot of the underlying fear that accompanies sexual objectification mostly kind of goes away or becomes irrelevant. And when women feel empowered to objectify men too, the sense of threat likewise diminishes.
… All of which is to say, I don’t think the problem is objectification itself. The problem is all the social baggage around it.
In sum: stop criticizing Halloween costumes for being sexually revealing. Criticize social pressure to don said costumes, by all means. But remember that the bigger problems are that society makes women put on a disguise to be slutty and really only lets them do it once a year, and that the problems associated with sexual objectification are more about the social context of that objectification than objectification itself.
Change the fucking social context, not (just) your clothes.
And if you want to start an odd sort of revolution, ladies, try wearing your sexy-ass Halloween costumes all the fucking time. That’s what I do. Trust me, it’ll seriously fuck with the social norms in ways you’d never expect.
Check out my crazy kinky musical
At RambleGRUE 2016, I assembled a crazy and kinky crew to create the world’s second Totally Awesome Very Kinky and Sexy Musical. You can watch the whole thing online! Make sure to check out one of my favorite numbers, Everyone’s a Little Bit Kinky!
Gruesical 2: A Funny Thing Happened on the Way to the Dungeon
(originally “Comedy Tonight” from A Funny Thing Happened on the Way to the Forum)
Filked by Fire_Monkey
Singers: IPCookieMonster, NerdCoreBecca, and RiverFern
“Everyone’s a Little Bit Kinky”
(originally “Everyone’s a Little Bit Racist” from Avenue Q)
Filked by Octopuppy
Singers: IPCookieMonster, MJSqueaks, NerdCoreBecca, and RiverFern
“When You Got It, Flaunt It”
(from The Producers)
Singers: EmberBliss and RiverFern
“You’re My Sub”
(originally “You’ll Be Back” from Hamilton)
Filked by Pyrope_
“I Dreamed a Dream”
(originally “I Dreamed a Dream” from Les Miserables)
Filked by MJSqueaks
(originally “Suddenly Seymour” from Little Shop of Horrors)
Filked by Graydancer and BlueRisk
Singers: Graydancer and BlueRisk
“I Want a Monster to Be My Dom”
(originally “I Want a Monster to Be My Friend” from Sesame Street)
Filked by Fire_Monkey
“Glitter and Be Gay”
“Wig in a Box” (from Hedwig and the Angry Inch)
Other Performers: stranjbird, BoundPunk
AND HUGE THANKS TO THE TECH CREW, AKA TOMCAT83
And also to the awesome person who recorded this for me, whose name I have forgotten because I’m a horrible person, but it included “Bunny”
Gender, orgasms, and control: a femme dom rant
Him: I feel like my life has turned into a femme dom porn.
Me: Except for the part where I’m actually sexually satisfied?
Him: Yeah, that and the bathroom rules.
Check the numbers. Guys in the divvy out to about 36% tops, 28% switch/kinkster, and 12% bottoms on fetlife. Chicks divvy out to about 11% tops, 23% switch/kinkster, and 46% bottoms. If I re-run those numbers to only include people with an easy identity in the denominator, you get 47% tops, 36% switches, and 16% bottoms for men; and 14% tops, 29% switches, and 57% bottoms for women. Although these numbers don’t necessarily represent the actual composition of real public scenes, that’s a pretty uneven distribution for hetero partnership.
Why such an uneven distribution between men and women for these identity labels? Some of it is undoubtedly weird scene gender norms. The vast majority of the serious female riggers I know self-identify as subs or slaves, and even though they like to torture people in rope, still don’t identify as switches. Which is certainly their right, but I think it says more about how women in the scene are taught to identify themselves than anything. Meanwhile, I’ve only ever personally met one sub-identified male rigger… but tons of male riggers who self-identify as “doms” even though they say they love tying for exactly the same reason that all those submissive female riggers do: because they like seeing people happy in their rope. My point here is that we teach women and men to identify themselves differently, and we don’t really encourage anyone to identify as a switch.
But when I look at that identity breakdown, I doubt that it’s as simple as traditional gender norms encouraging men to identify as dominant and women to identify as submissive, just because women identify as bottoms so much more than men identify as tops. And it’s possible that I’m asking the wrong question here, but… why so little purported enthusiasm from women for dominance?
Other than social identity pressures, I suggest that we could ignore most other aspects of gender socialization and narrow it down to this: most women–especially most kinky women–like to get fucked with something A LOT. I know that a significant proportion of kinky women like to get fucked really hard. With dicks, fingers, fists, silicone, glass–you know, whatever fits, and preferably not too comfortably–into their holes. And the problem here, as I’ve mentioned before, is that our cultural concept of submission is closely tied to the concept of penetration. So it almost feels like in order to identify as a dominant woman, you kind of have to also say, ‘I don’t really need a good fucking in order to be happy.’
At best, we let dominant hetero women ride men’s dicks (because if you’re going to be penetrated, at least stay physically on top, right?). I went to @Graydancer’s “tie ‘em up and fuck ‘em” class recently–a class which I think he’s taught for many years. While there, I was reminded how deeply ingrained some of these attitudes and perceptions are. The class, by the way, was excellent, and I highly recommend it. Gray taught a brilliantly simple technique that pretty much anyone can use to tie someone up and fuck them. And being a wonderfully open-minded sort of fellow, he showed it from both sides of the hetero equation (guy-tie-girl, girl-tie-guy). But he only showed the girl-tie-guy version initially with the girl on top until I asked him how I could tie up a guy to make him fuck me missionary (since this is usually how I cum best–and the hardest position to actually feel like I’m in control). He looked really confused for a minute, said no one had ever asked him that before, but being awesome, he promptly figured out how to do it. I’m not saying this to call him out–not at all. I’m just noting how much it apparently hadn’t occurred to anybody that a chick might want to tie a guy up and get him into a position where he could jackhammer her cervix (aka “missionary position”).
Consequently, I think a lot of women struggle with the concept of dominance. Then layer on top of those penetrated/“being fucked” = submissive problems the pernicious way that femme dom porn–which unfortunately has inspired a lot of what kinky people fantasize about and envision in terms of female domination and male submission–rarely shows dominant women orgasming at all. What. The. Fuck. It’s bad enough that kink world obsessively fetishizes the ten women in the world who can cum just from being whipped or hit; but to fetishize women who don’t even get sexual pleasure from doing the whipping is even worse. Newsflash to all the submissives out there: I’m not going to traipse around corseted so tightly I can barely breathe while tripping in absurdly high heels and NOT ORGASMING for your entertainment and call it domination. Fuck that shit.
I’ve had a lot of opportunity to ponder all this lately as I slowly acquired a “slightly less fake submissive” (guy). I can never take any d/s arrangement too seriously for myself, and it really always fundamentally is a game for me. But even in our very tongue-in-cheek “d/S contract,” I wrote, “the dominant likes to orgasm. A lot. The Submissive gets to orgasm if He is sufficiently entertaining.” Because what the hell is the point of being the one in control if I don’t get to cum a lot???
To make it even less appealing to (hetero attracted) women, a lot of popular hetero femme dom activities involve deliberately de-sexualizing men as a technique of humiliation or degradation. Why the hell do I want to put men in chastity devices that keep them from getting hard? This makes no sense at all to me. My good little submissive shopped around until he found a chastity device that basically forces him to STAY hard, which is waaaaay sexier, more fun, and more useful. Here’s another newsflash: for many (perhaps most) of us folks out there who are attracted to male submission, we are actually still attracted to masculine sexuality. Erections are still super hot; precum is still really hot; wet sticky orgasms are still super hot; nicely developed chests and biceps are still hot. I’m way more inclined to train a male sub to get hard on command than to train him not to get hard.
Here’s the thing: so much of our femme dom conceipts are derived from pro doms, who aren’t allowed to have sex with their clients. To get around that fact legally and socially, they devised a few creative ways to “not have sex” with their clients that were still getting their clients off because a happy ending makes for a happy customer. So these guys pay to get fucked with strap-ons, not to apply vibrators to the lady’s bits (which also would be legal). And the concept of dom girls as practically stone just trickled down from the pro houses to the femme dom porn world to the scene. It doesn’t help that men–not women–buy all that femme dom porn too, so there just isn’t much motivation on that side to emphasize dominant women’s sexual satisfaction either. (I’m not blaming the pros for anything, mind. They’re just trying to make a living. These problems happened because of social institutions, not because of individuals).
Which is all stupid, self-defeating, and incredibly ironic since it means that domination becomes way less appealing to women for fun and pleasure, so all those guys who want to get dominated keep having to go out and pay someone to do it instead.
So as a self-identified dom-leaning masochistic-leaning switchy slut, I’m going to lay down a few basic guidelines for SlutPhD’s New & Improved World of Feminine Dominance (note that these are guidelines, not rules or laws) to hopefully make the idea of dominance more appealing to women:
- The dom gets to cum. A lot. In whatever sexual position is most pleasurable to her, in whatever hole pleases her most. Even if that’s her ass.
- Being penetrated is not inherently submissive or anything else. It just is.
- At least for the length of the scene, the sub’s entire body (unless negotiated otherwise) is there for the dom’s pleasure, entertainment, and amusement. No part of it gets locked up or incapacitated in any way unless this is pleasing, entertaining, or amusing to the dom.
- When fantasizing about impractical things, submissives are hereby directed to focus more energy on impractical fantasies that are sexually pleasing for dominants. For people with penises, this includes things like getting hard on command and cumming on command. For everyone, this includes things like getting their whole fist inside their dom, because fisting is now officially declared to be neither dominant nor submissive, dammit, because it just feels good.
- Passion and passionate desire are not inherently dominant or submissive. You can still be a dom and like being thrown against a wall and kissed or thrown down onto a bed with a raging erection pressed against your thigh.
- Doms can still enjoy being cuddled and held tenderly by someone else. And are allowed to be vulnerable and cute and whimsical and all sorts of human emotions beyond “cold and bitchy.”
- Letting a woman dominate you does not lessen you in any way, and I will personally have nothing to do with any fetishistic practices that imply otherwise.
- Au contraire, you are hotter because this super sexy creature wanted to utterly and completely have you.
Meditations on anarchical poly
I’d be really disingenuous if I claimed that I have ever at any point in my poly life engaged in full fledged anarchical poly. My entire poly life, I’ve been happily married and sharing a bank account and living quarters with the same person. But at some point I got frustrated with purely hierarchical poly for myself and sort of kind of mostly gave up on relationship labels and hierarchies in my other relationships. Over time, I accumulated an increasingly large collection of “partners” of various sorts, and the dynamics have only gotten weirder and harder to catalog.
But let me start with what anarchical poly means to me.
I guess to me anarchical poly is about loosely defining relationships. It means committing to a person more than committing to a particular relationship dynamic. It also means being flexible about redefining and reconfiguring relationship dynamics based on life changes (whether that’s new partners, new interests, new jobs, new life circumstances, or whatever). Sometimes it means that relationships get primarily defined by an activity (in my life this is especially true for rope partners); sometimes it means that they get primarily defined by emotional attachment (most obviously love); but more often, it means that they get defined primarily by time and energy.
For all that anarchical poly claims not to be hierarchical, I don’t think I’ve ever met anyone who managed to do it with no hierarchies at all. In practice, there almost always ends up being at least one simple and important kind of hierarchy amidst the anarchy: people I make time for, and people who get the time that’s left. And in reality, there’s often still a hierarchy of people I make time for (“Joe is busy and so is Mark, so I can go out with Ellen”). So maybe I’m just really bad at this anarchical poly thing. Or maybe it’s just a fairly theoretical ideal to start with.
Time is fluid
Because I’ve mostly built my anarchical relationships around the idea of time spent together, it’s easy to define the relationships in those terms as well. But the sticky thing there is that time is fluid. Being a professional teacher, I get summer vacation, which means that I have a lot more time in the summer. If I had a partner who was a teacher too, we might get to spend a lot of time together in the summer, but a lot less time together when school started back. It would seem really sad to say that our relationship was “less serious” because school was back in, but in some sense, it might be true.
And this is where anarchical poly feels very different than more standard hierarchical arrangements. If my “girlfriend” and I both have summers off and then start back to work again in the fall, I don’t think that either of us would be likely to perceive ourselves as being more or less girlfriendly based on our employment situation. But in an anarchical poly situation, we’d sort of be (at least temporarily) redefining our relationship dynamic as “more serious” in the summer and “less serious” in the fall if we use time as our key relationship metric.
Conversely, if someone gets overwhelmed at work, and you barely see them for a month, in an anarchical arrangement, does that mean that you don’t really have a relationship with them anymore? In my mind, the answer is, “it depends on whether you’re holding space for them.” By “holding space,” I mean if you’re not really trying to replace them in any sense, and if you expect them to go back to basically the same place in your life that they were in before they got overwhelmed at work.
But the one that can get really weird is polyunsaturation. Polyunsaturation is, of course, a classic situation for poly dominoes because it’s easy for people to “upgrade” relationships beyond where they belong. You and your partner both break up with more serious partners, and both find yourselves with way more available time than you once had, and end up filling it with each other. Sometimes, this ends happily; often, it doesn’t, because there was a good reason (or ten) that the two of you were less serious to start with. Lacking firm definitions and clear boundaries about what your relationship means, is, and should look like (this was the point of the anarchical poly, right?), you just sort of drift into a new relationship pattern that doesn’t necessarily work well.
On the other hand, the whole point of the anarchical poly was supposed to be that you were flexible, right? You can enjoy spending a bit more time with a polyunsaturated partner, or a temporarily underemployed one, or one on a protracted vacation, and you can promise yourself that you’ll adapt when things change again. Because that was what you signed up for. (And by the way, you have to do that in hierarchical poly too. Or monogamy. It’s called “life”). But it can be disconcerting if you let yourself wonder too much what things will look like once whatever the situation is changes.
It’s so goddamned easy to just walk away
This is, unquestionably, the thing that I hate most about anarchical poly. If you make no promises to someone beyond, “I’ll stick around until I don’t,” you’ve made it ridiculously easy by definition to just walk away. And the problem with that kind of flexibility is that real relationships (friendships as well as romantic relationships) get messy sometimes, and take effort and work and thought and time and energy. In hierarchical poly and more traditional relationships, there usually are a lot of pragmatic considerations that help keep people together which often aren’t part of anarchical poly life. Fortunately for me, I’ve never really thought this way (knock on wood), but if I ever got super super pissed at my husband, the shared bank account, mortgage, cats, and friend networks would provide a helluva lot of pressure for us to work things out. But if I get super super pissed at my “partner,” the ties that bind are pretty fucking loose. What does leaving really cost me? Changing my google calendar and updating my fetlife relationships?
I’m enough of a relationship anarchist at heart that I really WANT my husband to stay with me just because he wants to and not because of the bank account/mortgage/cats/etc, and I really WANT my partner to stay with me just because he wants to and not because I’ve let him store a bunch of shit in my shed. I want all of my partners to think that I’m awesome enough that that alone motivates them to work stuff out with me when things get hard. But I think it would be the height of naivete to pretend like the practical shit is unimportant when life gets messy. After all, shared living quarters kind of necessitate working shit out with my husband, but a shared google calendar doesn’t really force me to work anything out with anyone else. Especially when there were no promises made with that calendar.
I don’t think there’s any way around that problem. I think a lot of people are attracted to anarchical poly because it’s easy to leave. But the converse is rather comforting: people are more likely to be with you because they genuinely want to be rather than because they can’t figure out how to leave.
It’s tricky to change with someone
People change. All the time. Sometimes they change for the better, sometimes they change for the worse. But I can just about guarantee that whoever you’re with will probably be fairly different in a year than they are right now. And this inevitably means that the shape, color, dynamic, and structure of your relationship is likely to change too. The art of successful long term relationship management is the art of changing with someone. Your partner decides they need to lose weight, so you find a shared exercise regimen. Your partner decides they need to get out and socialize more, and you both join a gaming group together. Your partner decides they need more variety in their sex life, so you both join the BDSM scene together… etc. etc. And part of the reason why that happens is because committed relationships mean committing to work with and move with someone as they change and grow.
But doing that in anarchical poly dynamics is a lot more difficult. In more traditional dynamics, the relationship itself defines the relationship. Your boyfriend is your boyfriend because he’s your boyfriend. But anarchical poly relationships often seem to get largely defined by what people do together (“my dom,” “my skiing buddy,” “my rope top”) and if one or both of them stops doing the thing, the relationship falls apart quickly. Or if time spent together defines the relationship, there is an inevitable degree to which that tends to be time spent doing a thing.
Which means that as people and their interests shift, it can be difficult to keep the relationship together in a meaningful way. Really, it often only works when people coincidentally change at the same time, because there’s just so much less motivation (or more depending on how you look at it) to change with the other person. When you use yourself as your own anchor rather than another person, when you get tired of the harbor, it’s pretty easy to just haul up and move along. But when you’re anchored to someone else, you’re kind of forced to move together or move apart.
It really doesn’t sound like it on paper, but I still have a lot of faith that anarchical poly is actually the most sustainable form of poly over the long haul. Except for my husband, all of the partners I’ve been able to hold onto for the longest were ones to whom I committed to them and not to a particular relationship dynamic.
After a few years with someone, I learn not to be insecure about it. But in the salad days (which I’ll go ahead and admit are way longer than I would like) of relationships, I still can’t help but feel insecure about it.
Murphy Blue’s and my performance at RopeCraft Austin ’16
Consider this performance a love letter to the ball of amazingness that is Murphy Blue. Because really, that’s what it is.
You may figure this out watching it, but there just. is. no. one. else. like. him.
Okay, so a little bit of backstory. I started planning a musical for RambleGRUE ’15. I worked on it for MONTHS. It was totally the fulfillment of a childhood dream for me. I had wanted to have a “backyard” musical since I was 7 years old. 4 hours before the show, I completely and utterly lost my voice. I had to just play my songs and perform without singing. Graydancer took pity on me and invited me to repeat my performance with Murphy at RopeCraft Austin ’16… small catch that there would now be an audience more than 3 times as large in a barely mic’d ballroom.
But it happened anyway. And it was one of the greatest moments of my life.
Huge thanks to the people that made Ropecraft happen. And huge thanks to @TwistedView for videoing this.
IPCookieMonster & Murphy Blue performing at RopeCraft Austin ’16 from Julie Fennell on Vimeo.
On a Constitutional Right to BDSM
by J.M. Green
From the Slut: J.M. Green is a friend who very recently completed law school and was gracious enough to write a detailed explication of an extremely complicated case. Much appreciation!
Dr. Slut has asked me to weigh in on a recent case decided in Virginia. I’m both delighted and flattered to be guest blogging here. My goal is to offer a solid understanding—legally and factually—of what the case actually decided, what it means that a court made this particular decision, and what actually happens now that the decision has been made.
What follows is a very detailed explanation of the case, and for people looking for the short takeaway, here it is: a Virginia District Court made several rulings in a complicated case of college date rape which purportedly involved BDSM. The alleged rapist, who had sued the school over how the school dealt with the case, won most of what he’d asked the court for. The only thing he didn’t win was a claim that the university was required to consider the BDSM context of his relationship, but his own admissions would damn him as a rapist in most BDSM communities. Legally speaking, he argued that he has a Constitutional right to engage in BDSM and the court used easily disputable logic to claim otherwise. The court’s ruling really doesn’t mean much, and it doesn’t apply in a very generalizable way. Moreover, it is suspect in terms of its legal reasoning, its simplistic treatment of BDSM, and its treatment of sex in general.
Now. For people who want to understand everything that happened in depth, here goes.
There has been has been a bit of rumbling and a bit of bumbling in the media recently about a Federal District Court’s decision in the case Doe v. Rector & Visitors of George Mason Univ., because the court spent a handful of pages (about 4 out of 45) analyzing whether the United States Constitution protects an individual’s right to engage in BDSM sex. A shorter version of that already short analysis? “Nope.” The decision is poorly reasoned on the question of the Constitution and BDSM. Critically, however, the “BDSM as Constitutional Right” issue (mostly) didn’t change the case’s outcome in the real world, and the hullabaloo around the decision is a bit silly.
However, the court’s analysis didn’t begin with the BDSM/Constitutional question—it took 40 pages to get there—nor did the court’s answer to that question dictate what actually happened to the people involved in the case. That was decided in the first 40 pages.
Yet, in every discussion I’ve read, the fact that the plaintiff (called “John Doe,” meaning he filed the case without disclosing his name) won nearly all the relief he asked for—the same person who claimed a right to BDSM sex under the Constitution—is glossed over. And yes, you read that right: he won. Without this context, much of the discussion that has followed is nonsensical. So, let’s start here with what happened in the first 40 pages of the decision.
Here’s how we’re going to proceed. First, I’m going to talk about what a “Constitutional Right to BDSM Sex” might look like. Second, I’m going to discuss the non-BDSM holdings in the case, so we have some perspective. Then, I’m going to discuss the BDSM related Constitutional holding (the holding that there is “no Constitutional right to BDSM Sex”) in Doe’s case, and break down how things work in the relevant area of Constitutional Law. Finally, I’m going to talk about why the legal impact of the BDSM related Constitutional holding is pretty much zero.
I. (Most of) what was actually decided in the case.
John Doe was expelled from GMU after being found “responsible” for “sexual misconduct.” At issue was whether, in the course of his relationship with a woman the court calls “Jane Roe” (for her privacy), Doe had engaged in sexual activity with her, without her consent. If so, he was in violation of school policies he’d agreed to in attending the school, and thus subject to expulsion. In terms of the school procedure and relevant facts (we’ll talk about the BDSM stuff in part II, but it’s not strictly relevant here), here’s what happened:
- Roe and Doe dated.
- Roe and Doe broke up.
- Doe sent Roe a text message threatening to kill himself if she did not respond.
- Roe made a formal complaint to GMU about things various Doe did, specifically including events on October 27, 2013 and the text message.
- GMU emailed Doe informing him he was the subject of (1) an alleged violation of GMU’s sexual misconduct policy and (2) charged with four violations of the code of conduct. Specifically, (1) “infliction of physical harm on any person(s), including self;” (2) “Deliberate touching or penetration of another person without consent;” (3) “Conduct of a sexual nature” and (4) “communication that may cause injury, distress, or emotional or physical discomfort.”
- Doe was given a hearing before a three-member panel of the school’s Sexual Misconduct Board, where he prevailed and was found “not responsible” as to any charge.
- That decision was appealed by Roe.
- Roe’s appeal went to an administrator named Ericson, who reversed the panel’s decision and found Doe “responsible.”
- Doe then appealed the appeal—apparently a unique event in GMU’s history—to Dean of Students Blank-Godlove (what a name!).
- Blank-Godlove affirmed Ericson’s decision and Doe was expelled.
After this series of events, Doe brought a lawsuit against the school, with a variety of claims, including the one that the school violated his Constitutional right to engage in BDSM sex.
The opinion that came down at the end of last month was a ruling on cross-motions for summary judgment. All “cross-motions” means is that both Doe and GMU are asking for summary judgment. Summary judgment is something granted by a judge where, if no relevant facts are in dispute, the law requires a particular result.
For example, let’s pretend Dr. Slut sued me for insulting her by saying “you’re stupid.” After we have each gathered some evidence, each of us looks at what we have and discover there’s no factual question of whether I said “you’re stupid:” it looks to both of us like I did say it. So, I go to the court and say “here are the facts we agree on, I think that there’s no legal reason I can’t say “you’re stupid” to Dr. Slut. Dr. Slut does the same, but in reverse, essentially saying “he admits he said ‘you’re stupid,’ and the law says I get money if he does that.” Then, the judge rules on what the law says. With me still? Cool. Let’s look at the opinion.
In this case, the court made three separate rulings. Two were about summary judgment, while the third gets a bit more complicated, so let’s start with the first two:
- Ruling: GMU violated Doe’s right to have “due process” before he was expelled.
Explanation: The “Due Process” Clause of the Constitution requires a certain amount of notice to be given to people like Doe in disciplinary hearings. Doe was given fair notice that his actions on October 27, 2013 were at issue, but not that his actions on any other day were. Because the decisions in the appeal process were based on things Doe did on other days, his Due Process Right was violated.
- Ruling: GMU violated Doe’s right to “free speech.”
Explanation: The Free Speech protections in the First Amendment protect speech in the form of text messages, but “true threats” do not have any First Amendment protections. GMU’s policy banning text messages that are “likely to…cause injury, distress or emotional or physical discomfort” bans more than just “true threats,” without justification. The court thus ruled that because Doe’s text message does not satisfy the legal definition of a “true threat,” it may not be the basis for an expulsion. The court is careful to note, however, that the issue was with the expulsion and its relationship to the policy; GMU would have been perfectly okay to have a policy that when such text messages were sent, students were sequestered and evaluated by mental health counselors.
So, there’s a lot there. Let’s break it down even further: (1) Doe wins. (2) Doe wins.
The court then addresses what remedy Doe gets. The court rules that Doe should be reinstated in the school, but the school CAN hold a new hearing on the same issues. It also rules that it will decide some related issues—like whether Blank-Godlove and Ericson are too biased to fairly run the new hearings—after more briefing and arguments.
II. A Constitutional right to BDSM sex
I think the most important thing in any discussion of a Constitutional right, especially when it is a discussion that probably involves non-area experts, is to set a clear definition of the right you’re discussing, or at least note the potential different definitions in play (I’m looking at you, Mr. Volokh). So what form does a Constitutional right to engage in BDSM sex take? What conduct does it protect? What conduct doesn’t it protect?
Constitutional rights, generally, are rights against the government. Because of the nature of government funding of universities, universities are considered government actors for a lot of purposes. So I have a right to free speech against a university, but not against an individual. If I make posts arguing that sex is morally reprehensible on Dr. Slut’s blog, she’s absolutely free to ban me without violating any right of mine. Not quite so for the government/a university. For example, the Supreme Court has ruled that the government cannot bar a protester from wearing a jacket with the slogan “Fuck the Draft” from entering a courthouse.
However, rights are never absolute. In classic terms, my right to freely swing my fist ends where your nose begins. So, let’s pause and assume there’s a Constitutional right to BDSM sex. Where would such a right end? The most sensible place, it seems to me, would be with consent. This squares with the case Doe cites as the source of his right. Doe cites Lawrence v. Texas, a Supreme Court decision about “homosexual sodomy” as establishing that “all adults have the same fundamental liberty interests [and therefore Constitutional rights] in their private consensual sexual choices.” BDSM only becomes more interesting if you assume it includes consensual non-consent-type play.
Thus, we might see two versions of the right. In the Lawrence case, Mr. Lawrence ended up in court claiming his right because the police broke down the door to his house and arrested him when they found him having a kind of sex Texas had made illegal. Applied to this case, we could imagine a set of facts where a roommate reported Doe and Roe for their sexual practices, and the school expelled him without Roe’s complaint. In that case, we’d have a question of whether a school could—consistent with the Constitution—ban BDSM practices altogether. The other form of the right—the one Doe’s case seems to present—is a question of where Doe’s rights end and Roe’s rights begin.
III. The other part of the case.
In the 4½ pages at the end of the opinion, the court rejects an argument that the university violated his “substantive due process” rights. Before we talk about what this means, we should lay two pieces of ground work: the facts and the law. I should also note that while it’s probably important to know the facts here, the law of substantive due process is pretty technical. While writing this piece, I’ve been able to get laughs from other law people by simply stating that “I’m writing a piece that explains substantive due process to a non-law audience.” So, please feel free to skip ahead to part IV.
First, the facts (we’ll unpack them a bit more below):
- To use the court’s stilted language, Roe and Doe were in a “romantic relationship” which “included certain sexual practices known collectively as ‘BDSM.’”
- Roe and Doe agreed upon and used the safe word, “Red.” They also seem to have agreed that their sex would include consensual non-consent play (“stop” doesn’t mean STOP; “no” doesn’t mean NO).
- On October 27, 2013, Roe and Doe had a play session in Doe’s dorm room. Apparently during this session, Roe pushed Doe away, and when asked whether she wanted to continue sex, Roe said “I don’t know.” Doe then resumed activities, according to the court, “despite the equivocation, given that Roe did not use the agreed safe word ‘red.’”
- After they broke up, Roe made reports to both GMU and the GMU university police about a variety of things Doe did, including various sexual encounters where she felt he violated her consent.
- According to the facts considered at summary judgement (this only means that there was some argument about the facts—not that there was an ultimate factual determination) Roe did not use the safe word on October 27.
- However Doe has admitted he has failed to stop sex and play when Roe safe worded, and even admitted this in his GMU hearing:
- On a call that Roe and the GMU police recorded, Roe asked Doe “why [he] never stopped when [she] used the safe word,” to which he replied that he “felt like [she] could handle it.”
- At the hearing before the Sexual Misconduct Board, Doe was asked if there were instance outside of October 27 when Roe used the safe word and he refused to stop. His response was it happened in “very rare” and “unusual circumstances” because he was “set in the routine of things.” He qualified this by saying when Roe said “red” again, he would then “stop immediately.” He apparently also assured the Board that he would “not just blatantly ignore and then continue.”
- The 3-person GMU Sexual Assault Panel found Doe “not responsible” as to the October 27 incident.
- Roe appealed and (ignoring the procedural issues in part I) Ericson investigated.
- Ericson found that Doe was responsible for sexual assault, specifically violations of GMU’s ban on touching or penetration “without consent.” However, his formal announcement did not explain the facts supporting or the reasoning of the decision.
- Doe appealed the appeal, and Dean of Students Blank-Godlove investigated.
- Blank-Godlove reviewed “only those portions of the record identified by Ericson as supporting his decision.” She upheld Ericson’s determination.
- Apparently those portions were not just about October 27: later, during the lawsuit, it was revealed that Doe was “expelled for conduct other than what occurred on October 27.”.
With the facts covered, let’s dig into the law of substantive due process, and look at what it means in this case:
First, for those unacquainted with Fourteenth Amendment law, let’s start with what the words mean. Drawing some very rough lines, a “substantive” right is a right to some actual thing in the world, as opposed to a right to some kind of process. If I have a substantive right to free speech, for example, I have a right that involves actual speaking. This stands in opposition to a “procedural” right, which is a right to some kind of process. For example, if I had a procedural right to free speech, I’d have a right to have a certain amount of process take place before my speech rights were taken away.
Substantive due process is about a set of rights that are so fundamental that they are implied in the Constitution, rather than explicitly stated. The doctrine has a storied history. For example, in 1905, the Supreme Court used substantive due process to strike down minimum wage and other labor laws because the Court saw those laws as infringing the fundamental right of individuals to freely contract (Lochner v. New York). More recently, decisions have taken a liberal turn, and notable “fundamental rights” include a woman’s right to control her own body and have an abortion (Roe v. Wade); in an individual’s right to engage in consensual “sodomy” (Lawrence v. Texas); and the freedom to marry a person of one’s choice, regardless of gender (Obergefell v. Hodges).
Doctrinally, here’s how you win a substantive due process claim. There are two kinds of review that a substantive due process claim can be given: strict scrutiny review and rational basis review. Winning cases essentially requires getting strict scrutiny review. When conducting strict scrutiny, courts use a lot of phrases like “substantially further a compelling government interest” and “least burdensome means,” which boil down to “government, if you want to restrict this right, you better have a damn good goal and no other way accomplish it.” Thus, it is exceedingly rare that a regulation can survive that test. On the other hand, courts doing rational basis review will ask if the government has a “legitimate interest” (and there doesn’t need to be a single piece of evidence that the interest identified in court was what the people passing the restriction had in mind) and whether the restriction is “rationally related” to that interest. Just as exceedingly few laws survive strict scrutiny, exceedingly few laws fail a rational basis test.
So, how do you get strict scrutiny? You must establish that the right you’ve identified is “fundamental.” The easiest way to do this is to find a case where the Supreme Court has already identified a fundamental right, and argue your right falls under that larger heading. If the right has not already been identified, or a court disagrees with you that your right should fall under a pre-existing right, there are two ways to show a right is fundamental. You can show either that your right is (1) “implicit in the concept of ordered liberty” or that it is (2) “deeply rooted in this Nation’s history and tradition.” Palko v. Connecticut, 302 U.S. 319 (1937); Moore v. City of East Cleveland 431 U.S. 494 (1977). Most arguments will cover both bases.
As you might guess, the most important fight in determining whether a right is fundamental is the fight over how—and at what level of generality—the right at issue is defined. To show you what I mean, let’s talk about the decision in the Lawrence v. Texas: the case that is the source of the fundamental liberty interest Doe claims. Lawrence was about a Texas law that banned “deviate sexual intercourse,” which was defined to mean “anal intercourse with a member of the same sex (man).” Police, responding to what was apparently a false report of a “weapons disturbance,” entered the home of John Lawrence and his partner. The police found them making the beast with two backs, and arrested them for violation of the Texas “Homosexual Conduct” law (the one I mentioned above). They were convicted, and appealed that conviction to the Supreme Court, saying the law violated their substantive due process rights.
Ultimately, the Court decided that “all adults have the same fundamental liberty interests in their private consensual sexual choices,” and that this right extended to Lawrence and his partner. However, Texas didn’t argue that all adults did not have a fundamental interest in “private consensual sexual choices.” Instead, Texas argued that there was no fundamental “right to engage in homosexual anal intercourse,” and argued vehemently that even if there was a right to engage in private consensual sexual choices,” that right didn’t help them because they could not “establish a historical tradition of exalting and protecting the conduct” (read: anal sex) “for which they were prosecuted at any level of specificity.”
In Doe’s case, the most sensible approach would have been to start from what is clear in the law; Lawrence unequivocally stated that there is a fundamental interest in “private consensual sexual choices.” The proper question left for Judge Ellis to decide was not whether there was a fundamental liberty interest in “freedom from state regulation of consensual BDSM activity,” but whether the regulation of consensual BDSM activity violates broader right to “private consensual sexual choices.” I am not suggesting that would be an easy constitutional question; but I am saying it’s the right one to ask. Instead, Judge Ellis takes a nonsensical perspective and argues that “Obergefell [(the gay marriage case)] explicitly establishes that the Due Process and Equal Protection Clauses are interlocking and each leads to a stronger understanding of the other” (quotation marks removed). While it is true that this is the case in Obergefell, the claim that Obergefell somehow ruled that all Substantive Due Process claims must have an Equal Protection element is an absurd one, and one I can’t find being made anywhere else.
I should also mention that at least some BDSM communities would recoil in horror at Doe’s attitude towards safewords, and thus it’s far from clear that the BDSM context wasn’t (or couldn’t have been) taken into account. Recall that Doe admitted at the hearing he did not always immediately respond to safewords, sometimes because he was “set in the routine of things.” Clarisse Thorn wrote a fantastic piece on safe words several years ago, and has cited approvingly to Thomas MacAulay Millar’s annotated version of it. In the annotations, Millar writes that it “can’t be emphasized enough” that “Tops Can Never Be On Cruise Control!” (emphasis and capitalization from the original). Along a similar line, one major online resource for submissive partners in BDSM relationships (the “Submissive Guide” by lunaKM) instructs that “[i]f used, the ‘stop’ safeword should be respected unconditionally. After the bottom uses the safeword, the activity or entire scene is over, inflicting pain or any physical forcing should be stopped and all restraints should be removed immediately. Ignoring safewords is considered dishonorable and a deeply immoral practice in the BDSM community” (emphasis added). While this by no means speaks for everyone in the community, Doe’s admissions about his behavior regarding safe words would be plenty in at least some BDSM communities to—with the BDSM context he asks for!—determine he had violated consent; he failed to stop “immediately” because, as he describes it, he was “set in the routine of things” (in other words, he was “on cruise control”).
IV. What is the impact of this decision?
Of course, none of the above may really matter; the impact of the BDSM portion of decision is (next to) zero. To explain this, I want to start with what will happen to John Doe now.
John Doe has a right to a new hearing because the appeal process for the original hearing was found to be Constitutionally inadequate. Let’s talk about what that means in light of what we know Doe did. Doe claims that Ericson and Blank-Godlove did not take account of the BDSM context of his relationship in his appeal. However, if that was strictly true, it’s hard to see why they would have needed to rely on events OTHER THAN the October 27 incident. On October 27, we know that Roe physically pushed Doe away and expressed disinterest in continuing sex, which Doe responded to by continuing sex. Without a BDSM context, that is a pretty clear violation of consent.
Even with a BDSM context, we know that Doe admitted he did not stop activity when Roe used her safe word, and we know that he did this more than once. This is legally relevant because it means that the court’s decision on the Due Process right is a decision on a question that was not appropriately before it; on the undisputed facts, Doe’s right to private consensual sexual choices was not violated when the school enforced a consent policy against him. Moreover, as far as I can tell, his argument that BDSM community norms would compel a different result on a consent determination is simply wrong about community norms.
I should also explain a little bit about what it means that this case was decided in a Virginia District Court. The court is in the federal system, which is structured as follows:
- United States Supreme Court (top)
- Federal Appellate Courts
- Federal District Courts (bottom)
In this system, decisions by a higher (closer to the top) court must be followed by that court, and any courts below them. Additionally, a judge at the same level as another may explicitly overrule the decision of that judge, though such decisions are less common. So, the Virginia district court’s (the bottom rung on that ladder) decision only requires another court in that same district to follow its results, and even then, it is not exactly required so much as strongly suggested. Furthermore, because as I mentioned above, it was not necessary to decide the Constitutional question to reach the result in this case, another district court might call the decision “dicta.” What that means is that the court was expressing an opinion on an issue it didn’t need to decide, and therefore that opinion is just that: an opinion, and not a binding judicial decision.
Finally, I want to express one last opinion. Because this case is a district court case, its influence is only as great as its reasoning is convincing. Judge Ellis’s reasoning is not convincing, and here’s why: it is entirely consistent with both Lawrence and the result in this case to say that (1) Doe should lose on the Constitutional issue, and (2) there is a Constitutional right that protects BDSM sex. Recall that Lawrence was about a legislative ban on a victimless crime. By contrast, Doe had a victim. The facts of a case that would actually require a court to decide whether Lawrence’s right to consensual sex includes BDSM would look more like this:
- Doe and Roe are in a BDSM relationship.
- They are having a consensual non-consent type scene in Doe’s dorm room.
- Doe’s roommate walks in, and immediately calls the GMU police.
- Doe is brought before a Sexual Misconduct Board, where Doe’s roommate testifies to what he saw Doe doing to Roe.
- Roe either testifies that she had negotiated with Doe, or is for some reason unavailable to testify.
Whether that case would come out differently is perhaps underscored by the fact that Doe was found “not responsible” by the Misconduct Board, even when he explicitly admitted he didn’t always follow safe word practices appropriately.
So what does all this mean? Doe is now a student at GMU again. He’s going to have another hearing. However, there is no reason that he needs to be found “not responsible” in that hearing. Based on what appear to be uncontested facts, in that hearing, a panel could take into account BDSM context and still find him “responsible” for sexual assault. Doe clearly won the battle here, but it may be something of a pyrrhic victory. But none of that should make us worry deeply about the Constitutional status of BDSM. This case has no binding effect decisions by future courts in cases where an actual ban on BDSM practices is enacted, nor does it have any binding effect on cases where there is no victim. It is unfortunate that even in the legal field, sometimes very important complexity is lost in translation, and that has certainly happened in reporting on Doe’s case.
I also want to take one last moment to focus on the impact of this decision on Roe. Tragically, the University’s handling of this case probably forces her to make the horrible choice of going through a hellish proceeding again or knowing that Doe will go unpunished. It seems clear to me that a little less squeamishness around the BDSM element of the case would have gone a long way: if the administrators had looked up BDSM community standards on safewords, Doe’s testimony would have damned him, and they could explicitly say “we took into account the BDSM context, and in that context, you were responsible for sexual assault.” Perhaps we can hope this case teaches universities that lesson.
 A big thank you to my dear friend Maya (mayashakti) for help in trying to make this understandable to non-lawyers.
 For those familiar with some parts of Constitutional law playing along at home, you may notice that it’s kind of weird that a University can violate Constitutional rights. That’s a complicated story, but it can be reduced to “Universities are basically government/state actors in some cases.” It’s also worth noting that the court mentions that its second holding may be moot—that is, not relevant anymore—because it rules in Doe’s favor on the first, and the relief Doe requested is the same for each violation.
 For those keeping score at home, this actually isn’t the first time this was addressed in this case. Doe’s substantive due process right to BDSM sex claim was actually dismissed back in September. See 2015 U.S. Dist. LEXIS 125230. Doe raised the issue again with a motion to reconsider. The analysis is substantially different, so I’m going to talk exclusively about the February decision.
 The court is not particularly clear on whether Roe explicitly agreed to consensual non-consent, though it notes that “according to [Doe,] the ground rules for his BDSM relationship with Roe included that [Doe] should not stop sexual activity unless or until Roe used the safeword.”
 The court treats this like it was a surprise to Doe, but at least one charge—the charge related to his text message—was clearly about a non-October 27 event. That said, it does seem reasonable to say that, with regard to the allegations of consent violations, this may have come as a surprise to Doe.
 I am only treating the kind of substantive due process claim made by Doe. There are some other modes of analysis out there that I’m not mentioning because this is already way too complicated. See, for example, Justice Souter’s dissent, proposing sliding scale-type analysis in Washington v. Glucksberg (a case about assisted suicide case), suggesting that the test should be comparing the importance of the right asserted with the importance of the state interest.
 There is a variance in terminology, and the opinion in Doe’s case uses both. Just know that “implied fundamental right,” a “fundamental right,” and an “implied fundamental liberty interest” mean exactly the same thing.
 Yes, they made super-duper clear they were only going after homosexual dudes. Heterosexuals and lesbians could apparently have all the anal sex they wanted.
 There is also an equal protection story here, but let’s put that aside.
Radio Podcast Interview–You can call in!
Tonight, March 6, the Slut will be interviewed on the People of Kink Radio at 7 PM EST! You can call in and ask questions:
Call via Skype for free by using the Skype ID of “thepeopleofkink”.
You can also call 231-580-TPOK. Long distance charges may apply.
Check it out at https://www.spreaker.com/user/crazyheart
Why Do People Do BDSM + Bonus Bondage
Back in the fall of 2015, I gave an academic-ish talk for a group called We Are Takoma. I threw in some bonus bondage performances as it was also an arts venue. The talk explains why people engage in BDSM. The bondage performances are a sexy bonus.
The talk is by me
The first performance is by Sardonic and WigglyBunny
The second performance is by me and Greneydathlete